Book Publishers and the Internet Archive Disagree on the Destiny of Digital-Book Lending Case

on Sep 07, 2022

The Internet Archive and a consortium of big book publishers filed opposing statements Friday in Manhattan federal court, arguing that they are entitled to an early victory in their possible landmark copyright fight over digital lending.

In opposing court documents, the parties argued over the legality of the Archive's "managed digital lending" of digitally scanned print books, which the Archive compares to traditional library lending but the publishers describe as a ruse for mass infringement.

Terrence Hart, general counsel for the Association of American Publishers, said Tuesday that regulated digital lending bears no connection to what real libraries do and is nothing more than a rhetorical smoke cover for industrial-level infringement.

The Electronic Frontier Foundation, which represents the Archive, said in a statement on Tuesday that it had no comment beyond the content of its brief.

In June 2020, Hachette Book Group, HarperCollins Publishers, John Wiley & Sons Inc, and Penguin Random House filed a lawsuit against the San Francisco-based Internet Archive for free lending of digitally scanned versions of their print books during COVID-19 shutdowns.

In July, the parties each sought summary judgment before going to trial on their separate claims. The Archive informed the court at the time that it purchased all of the books lawfully, limits digital lending in the same manner that physical libraries do, and should be protected by the fair-use concept.

The publishers reacted on Friday, calling the Archive's stance an "exercise in willful denial that disregards recognized law." Courts and Congress, they claim, have rejected the Archive's claim that purchasing real books authorizes it to generate "millions of unlawful ebooks."

They also said that the Archive "displays contempt for writers" by monopolizing the e-book industry, and they disputed the Archive's claim that its endeavor is not commercial.

The project's "symbiotic" partnership with the for-profit, socially aware retailer Better World Books, which is owned by an Archive-affiliated NGO, was noted in the brief.

According to the Archive, the publishers' July motion was "heavy with allegation and passion, but weak on real facts," as there was no indication of economic loss.

"Their conflation of licensed ebooks with scanned copies of physical books reveals the true objective of this action," according to the Archive. "Plaintiffs want to drive libraries and their customers into a future where books can only be accessed, never owned, and availability is at the discretion of the rightsholders."